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'Rogue States' Within American Borders: Remedying State Noncompliance with the International Covenant on Civil and Political Rights
California Law Review
  • Margaret S. Thomas, Louisiana State Univiersity, Paul M. Hebert Law Center
Abstract
Nearly a decade after the United States ratified the International Covenant on Civil and Political Rights, the treaty's implementation is incomplete. A complex maze of reservations, understandings, and declarations has hindered domestic implementation, as has Congress 's failure to pass national implementing legislation. Almost every state in the Union has laws that violate the Covenant. For example, the treaty requires that in criminal matters, juveniles must be tried in a manner that takes account of their age. Nevertheless, California and many other states frequently treat minors as adults in such matters. Because the Senate declared the treaty to be non-self-executing, the question arises whether there is any legal remedy for state breaches of this U.S. treaty obligation. The Supremacy Clause exclusively regulates the relationship between treaties and states. Nothing in the Supremacy Clause requires congressional implementation of a treaty in order for that treaty to supersede state law. Congress's failure to implement the treaty merely displaces the primary burden of enforcement to the states. The Senate's declaration that the Covenant shall not be self-executing in no way diminishes state courts' duty to enforce the treaty. Though the declaration may limit the federal courts' ability to recognize private rights of action based on the treaty, federal courts have demonstrated an increasing willingness to entertain claims to treaty rights asserted against the government. Both state and federal courts have the power to bring wayward state laws into compliance with the Covenant's obligation.
Comments

90 Cal. L. Rev. 165 (2002)

Disciplines
Keywords
  • Human rights,
  • Federal government,
  • Treaties -- Interpretation & construction,
  • Federal-state controversies,
  • International Covenant on Civil & Political Rights (1966)
Date of Authorship for this Version
1-1-2002
Citation Information
Margaret S. Thomas. "'Rogue States' Within American Borders: Remedying State Noncompliance with the International Covenant on Civil and Political Rights" California Law Review (2002)
Available at: http://works.bepress.com/margaret_thomas/4/